Common use of Initial Merger Consideration Clause in Contracts

Initial Merger Consideration. (a) The initial aggregate consideration (the “Initial Company Securities Amount”) to be paid in connection with the Merger to the holders of the class A common stock, par value $0.0001 per share, of the Company (the “Class A Common Stock”), the holders of the class B common stock, par value $0.0001 per share, of the Company (the “Class B Common Stock”, and together with the Class A Common Stock, the “Company Common Stock”), other than shares of Company Common Stock to be cancelled pursuant to Section 2.3(a), the Optionholders (as defined herein) and the Warrantholders (as defined herein), shall be an amount equal to the following (which amount shall be adjusted as provided herein): (1) $840,000,000 (the “Total Consideration”); plus (2) the amount of cash and Cash Equivalents of the Company and the subsidiaries of the Company (collectively, the “Company Subsidiaries”) on the Closing Date; plus (3) the amount, if any, by which the Estimated Closing Working Capital is greater than $52,000,000 (the “Net Working Capital Target”); minus (4) the amount, if any, by which the Estimated Closing Working Capital is less than the Net Working Capital Target; minus (5) the amount of Company Transaction Expenses; minus (6) all outstanding Indebtedness of the Company and the Company Subsidiaries on the Closing Date (before taking into account any repayment of Indebtedness on the Closing Date pursuant to the terms hereof), including the following (the “Closing Indebtedness”): (i) all outstanding principal and accrued and unpaid interest (but not the outstanding letters of credit issued thereunder (the “Letters of Credit”)) under the credit agreement, dated as of November 5, 2004, by and among D▇▇▇▇ Pet Care Company, as borrower, the Company, as guarantor, the lenders from time to time party thereto and Credit Suisse First Boston, acting through its Cayman Islands Branch, as administrative agent and collateral agent (the “Existing Credit Agreement”) and any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (ii) all outstanding principal and accrued and unpaid interest under the 9.750% senior subordinated notes due 2007 (the “2007 Notes”) of DPC and any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (iii) all outstanding principal and accrued and unpaid interest under the 10.750% senior notes due 2010 of DPC (the “2010 Notes” and, together with the 2007 Notes, the “Notes”); plus (iv) all outstanding principal and accrued and unpaid interest under the 7.250% Ottawa County Finance Authority Industrial Revenue Bonds of DPC (the “Miami Bonds”) and, if the Company fails to obtain the Consent in respect of the Miami Bonds contemplated by Section 5.16 prior to the Closing Date, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (v) all outstanding principal and accrued and unpaid interest under the 6.25% Oklahoma Development Finance Authority Industrial Development Revenue Bonds of DPC (the “C▇▇▇▇▇▇ ▇▇▇▇▇” and, together with the Miami Bonds, the “Bonds”) and, if the Company fails to obtain the Consent in respect of the C▇▇▇▇▇▇ ▇▇▇▇▇ contemplated by Section 5.16 prior to the Closing Date, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (vi) the liquidation preference and all accrued and unpaid interest or dividends with respect to the 14.25% senior preferred stock (the “DPC Preferred Stock”) of DPC and any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions), to be calculated pursuant to Section 5(c) of the Certificate of Designations and other terms thereof (the “DPC Preferred Stock Redemption Amount”); plus (vii) all outstanding principal and accrued and unpaid interest under the loan agreement dated June 14, 2004 between A/S Arovit Petfood and FIH Erhvervsbank A/S (the “FIH Loan Agreement”) and, if the Company fails to obtain the Consent in respect of the FIH Loan Agreement contemplated by Section 5.16 prior to the Closing Date, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); minus (7) the Escrow Amount; minus (8) the Reserve Amount; minus (9) the Rollover Amount; minus (10) $250,000. (b) At the Closing, Newco shall, or shall cause the Surviving Corporation to, pay by wire transfer of immediately available funds the following: (1) to the Paying Agent, an amount for distribution in accordance with Sections 2.3(b), (c) and (d) and Section 2.5 equal to the Initial Company Securities Amount; (2) to the Paying Agent, an amount for distribution in accordance with Section 5.14 equal to the DPC Preferred Stock Redemption Amount (together with the Initial Company Securities Amount, the “Initial Merger Consideration”); (3) to Sun Trust Bank (the “Escrow Agent”), an amount equal to the sum of (i) an amount equal to $5,000,000 minus the Rollover Working Capital Adjustment Amount (the “Working Capital Adjustment Escrow Amount”) and (ii) an amount equal to $15,000,000 minus the Rollover Indemnity Escrow Amount (the “Indemnity Escrow Amount” and, together with the Working Capital Adjustment Escrow Amount, the “Escrow Amount”), in each case to be held for the period provided in, and to be distributed by the Escrow Agent as provided in, Section 8.3 and the terms of an escrow agreement, in form and substance reasonably satisfactory to Newco and the Stockholder Representative, to be entered into at Closing by the Surviving Corporation, the Escrow Agent and the Stockholder Representative (the “Escrow Agreement”); (4) to a reserve account established and maintained by the Stockholder Representative in connection with the Transactions (the “Reserve Account”), an amount equal to $2,000,000 minus the Rollover Reserve Amount (the “Reserve Amount”), which shall be held by the Stockholder Representative and used and distributed as specified in Section 2.8(b) and any other documentation or agreements executed and delivered by the holders of Company Securities in connection with the Transactions; and (5) to an account established and maintained by the Surviving Corporation on behalf of the holders of Rollover Shares and Rollover Options in connection with the Transactions (the “Rollover Account”), the Rollover Working Capital Adjustment Amount, the Rollover Indemnity Escrow Amount and the Rollover Reserve Amount, which shall be held by the Surviving Corporation and used and distributed as specified in Section 2.1(f), Section 2.7(c), Section 2.8(b) and any other documentation or agreements that may be executed and delivered by the holders of Rollover Shares, Rollover Options and Newco or the Surviving Corporation. (c) The Initial Company Securities Amount shall be distributed to holders of Company Common Stock, Company Options and Company Warrants (collectively, the “Company Securities”) by the Paying Agent as provided in Section 2.3 and Section 2.5 and in accordance with the Paying Agent Agreement; provided, that the Paying Agent shall not deliver to such holder of Company Securities any cash for such holder’s outstanding Company Securities until such holder has delivered to the Paying Agent the appropriate Surrender Forms with respect to such Company Securities; and provided, further, that if a holder has not delivered to the Paying Agent the appropriate Surrender Forms at Closing, the Paying Agent shall hold such amount and not pay such amount to such holder until such Surrender Forms are delivered. (d) The DPC Preferred Stock Redemption Amount shall be distributed to holders of the DPC Preferred Stock by the Paying Agent as provided in Section 5.14 and in accordance with the Paying Agent Agreement and the certificate of designations for the DPC Preferred Stock (the “Certificate of Designations”); provided, however, that the Paying Agent shall not deliver to such holder of DPC Preferred Stock any cash for such holder’s outstanding shares of DPC Preferred Stock until such holder has delivered to the Paying Agent the appropriate return notice (as provided in the Certificate of Designations) with respect to such shares of DPC Preferred Stock. (e) At the Closing, the Surviving Corporation shall pay the Company Transaction Expenses in the amounts and to the persons specified in the Company Transaction Expense Schedule. (f) Any amounts payable to the holders of Company Securities (other than holders of Rollover Shares and Rollover Options) after the Closing (including any Escrow Amount, any Reserve Amount, or any other amounts due and payable to the holders of Company Securities in connection with the Transactions) (collectively, the “Additional Company Securities Amount”) shall be paid to the Stockholder Representative on behalf of the holders of Company Securities, and thereafter distributed by the Stockholder Representative to the holders of Company Securities in accordance with the terms of this Agreement, the other Transaction Agreements and any other documentation or agreements executed and delivered by the holders of Company Securities in connection with the Transactions. Notwithstanding the foregoing, no holder of Rollover Shares or Rollover Options shall be entitled to any portion of any Additional Company Securities Amount. Any amounts payable to holders of Rollover Shares or Rollover Options after the Closing (including any Rollover Working Capital Adjustment Amount, any Rollover Indemnity Escrow Amount, any Rollover Reserve Amount, or any other amounts due and payable to the holders of Rollover Shares and Rollover Options in connection with the Transactions) (collectively, the “Additional Rollover Securities Amount”) shall be paid by the Surviving Corporation to the holders of Rollover Shares and Rollover Options in accordance with the terms of this Agreement, the other Transaction Agreements and any other documentation or agreements that may be executed and delivered by the holders of Rollover Shares and Rollover Options and Newco or the Surviving Corporation in connection with the Transactions.

Initial Merger Consideration. (a) The initial aggregate consideration (the “Initial Company Securities AmountCommon Equity Consideration”) to be paid in connection with the Merger to the holders of the class A common stock, par value $0.0001 0.01 per share, of the Company (the “Class A Common Stock”), the holders of the class B common stock, par value $0.0001 per share, of the Company (the “Class B Common Stock”, and together with the Class A Common Stock, the “Company Common Stock”), other than shares of Company Common Stock to be cancelled pursuant to Section 2.3(a), the Optionholders (as defined herein) and the Warrantholders (as defined herein), RSUs shall be an amount equal to the following (which amount shall be adjusted as provided herein): (1) $840,000,000 338,000,000 (the “Total Consideration”); plus (2) the amount of cash and Cash Equivalents of the Company and the subsidiaries of the Company (collectively, the “Company Subsidiaries”) on the Estimated Closing DateCash; plus (3) the amount, if any, by which the Estimated Closing Net Working Capital is greater than $52,000,000 47,083,355 (the “Net Working Capital Target”); minus (4) the amount, if any, by which the Estimated Closing Net Working Capital is less than the Net Working Capital Target; minus (5) the amount of unpaid Estimated Company Transaction Expenses; minus (6) all outstanding the amount of Estimated Closing Indebtedness, including the Indebtedness of the Company and the Company Subsidiaries on the Closing Date (before taking into account any repayment of Indebtedness on the Closing Date pursuant to the terms hereof), including the following (the “Closing Indebtedness”):under or in respect of: (i) all outstanding principal and accrued and unpaid interest (but not the outstanding letters of credit issued thereunder (the “Letters of Credit”)) under the credit agreement, dated as of November 5December 17, 20042003, as thereafter amended, by and among D▇▇▇▇ Pet Care CompanyBlue Ridge Paper Products Inc., a Delaware corporation (“BRPPI”), as borrower, the Company, as guarantor, the lenders from time to time party thereto and Credit Suisse First Boston, acting through its Cayman Islands BranchGeneral Electric Capital Corporation, as administrative agent, agent and collateral agent (the “Existing Credit Agreement”) and any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); pluslender; (ii) all outstanding principal and accrued and unpaid interest under the 9.7509.50% senior subordinated secured notes due 2007 2008 (the “2007 2008 Notes”) of DPC and any feesBRPPI, pre-payment premiums, pre-payment penalties and charges associated therewith (includingprovided that notwithstanding anything else to the contrary, for purposes of this Agreement the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (iii) all outstanding principal and accrued and unpaid interest Indebtedness under the 10.750% senior notes due 2010 of DPC (the “2010 Notes” and, together with the 2007 Notes, the “Notes”); plus (iv) all outstanding principal and accrued and unpaid interest under the 7.250% Ottawa County Finance Authority Industrial Revenue Bonds of DPC (the “Miami Bonds”) and, if the Company fails to obtain the Consent or in respect of the Miami Bonds contemplated by Section 5.16 prior to 2008 Notes shall equal the Closing Date, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith sum of (including, for the avoidance of doubt, any additional amounts payable as a result I) 104.75% of the Transactions); plus principal amount thereof plus (vII) all outstanding principal and accrued and unpaid interest under the 6.25% Oklahoma Development Finance Authority Industrial Development Revenue Bonds of DPC (the “C▇▇▇▇▇▇ ▇▇▇▇▇” and, together with the Miami Bonds, the “Bonds”) and, if the Company fails to obtain the Consent in respect of the C▇▇▇▇▇▇ ▇▇▇▇▇ contemplated by Section 5.16 prior to the Closing Date, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (vi) the liquidation preference and all accrued and unpaid interest or dividends with respect to thereon through the 14.25% senior preferred stock Closing Date (the “DPC Preferred Stock”) of DPC and any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions), to be calculated pursuant to Section 5(c) of the Certificate of Designations and other terms thereof (the “DPC Preferred Stock Redemption Note Prepayment Amount”); plus (vii) all outstanding principal and accrued and unpaid interest under provided, however, that in the loan agreement dated June 14, 2004 between A/S Arovit Petfood and FIH Erhvervsbank A/S (the “FIH Loan Agreement”) and, if event Parent notifies the Company fails that it intends to obtain satisfy the Consent 2008 Notes by a defeasance or satisfaction and discharge mechanism, the amount in respect of the FIH Loan Agreement contemplated by Section 5.16 prior 2008 Notes shall instead equal the sum of (x) the amount required to be deposited with the trustee thereunder to effectuate such defeasance or satisfaction and discharge (provided that for purposes of this clause the amount deposited in respect of accrued interest shall not be deemed to include any interest accruing from and after the Closing Date) plus (y) if the amount described in clause (x) does not include a prepayment penalty, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result 4.75% of the Transactionsprincipal amount of the 2008 Notes; provided that in no event shall the amount determined under this proviso exceed the Note Prepayment Amount; (iii) the Pay-In-Kind Senior Subordinated Note, dated May 14, 1999, by the Company in favor of International Paper Company (successor in interest to Champion International Corporation); and (iv) the promissory note, dated July 9, 2003, in the original principal amount of $818,550; minus (7) the Escrow Aggregate Preferred Stock Amount; minus (8) the Reserve Amountamount of the MSA Termination Payment; and minus (9) an amount equal to $1,500,000, increased by any additional amount (not to exceed $1,000,000) determined under the Rollover last sentence of Section 2.6(a) (as increased, the “PPA Escrow Amount; minus (10) $250,000”). (b) At the Closing, Parent or Newco shall, or shall cause the Surviving Corporation to, pay by wire transfer of immediately available funds the following: (1) to the Paying Agent, an amount for distribution in accordance with Sections 2.3(b), (c) and (d) and Section 2.5 equal to the product of (x) the Initial Company Securities AmountCommon Equity Consideration multiplied by (y) the Appraisal Rights Fraction, if any; (2) to the Paying Agent, an amount for distribution in accordance with Section 5.14 equal to the DPC Initial Preferred Stock Redemption Amount (together with the Initial Company Securities Amount, the “Initial Merger Consideration”); (3) to Sun Trust Bank (the “Escrow Agent”), an amount equal to the sum of (i) for deposit in an amount equal to $5,000,000 minus the Rollover Working Capital Adjustment Amount (the “Working Capital Adjustment Escrow Amount”) and (ii) an amount equal to $15,000,000 minus the Rollover Indemnity Escrow Amount escrow account (the “Indemnity Escrow Amount” andAccount”), together with the Working Capital Adjustment Indemnity Escrow Amount and (ii) for deposit in an escrow account (the “PPA Escrow Account”), the PPA Escrow Amount, the “Escrow Amount”), in each case case, such amounts to be held for the period provided in, in a separate escrow account and to be distributed by the Escrow Agent as provided in, Section 8.3 and in accordance with the Escrow Agreements and the terms applicable provisions of an escrow agreement, in form and substance reasonably satisfactory to Newco and the Stockholder Representative, to be entered into at Closing by the Surviving Corporation, the Escrow Agent and the Stockholder Representative (the “Escrow this Agreement”);; and (4) to the Stockholder Representative for deposit into a reserve separate account, the Administrative Expense Amount to be held in such separate account established and maintained distributed by the Stockholder Representative in connection accordance with the Transactions (the “Reserve Account”), an amount equal to $2,000,000 minus the Rollover Reserve Amount (the “Reserve Amount”), which shall be held by the Stockholder Representative and used and distributed as specified in Section 2.8(b) and any other documentation or agreements executed and delivered by the holders applicable provisions of Company Securities in connection with the Transactions; and (5) to an account established and maintained by the Surviving Corporation on behalf of the holders of Rollover Shares and Rollover Options in connection with the Transactions (the “Rollover Account”), the Rollover Working Capital Adjustment Amount, the Rollover Indemnity Escrow Amount and the Rollover Reserve Amount, which shall be held by the Surviving Corporation and used and distributed as specified in Section 2.1(f), Section 2.7(c), Section 2.8(b) and any other documentation or agreements that may be executed and delivered by the holders of Rollover Shares, Rollover Options and Newco or the Surviving Corporationthis Agreement. (c) The Subject to Section 2.4, the Initial Company Securities Amount Common Equity Consideration shall be distributed to holders of Company Common Stock, Company Options Stock and Company Warrants (collectively, the “Company Securities”) RSUs by the Paying Agent as provided in Section 2.3 and Section 2.5 and in accordance with the Paying Agent Agreement; provided, that the Paying Agent shall not deliver to such holder of Company Securities any cash for such holder’s outstanding Company Securities until such holder has delivered to the Paying Agent the appropriate Surrender Forms with respect to such Company Securities; and provided, further, that if a holder has not delivered to the Paying Agent the appropriate Surrender Forms at Closing, the Paying Agent shall hold such amount and not pay such amount to such holder until such Surrender Forms are delivered. (d) The DPC Initial Preferred Stock Redemption Amount shall be distributed to holders of the DPC Company Preferred Stock by the Paying Agent as provided in Section 5.14 2.3 and Section 2.5 and in accordance with the Paying Agent Agreement and the certificate of designations for the DPC Preferred Stock (the “Certificate of Designations”); provided, however, that the Paying Agent shall not deliver to such holder of DPC Preferred Stock any cash for such holder’s outstanding shares of DPC Preferred Stock until such holder has delivered to the Paying Agent the appropriate return notice (as provided in the Certificate of Designations) with respect to such shares of DPC Preferred StockAgreement. (e) At the Closing, Parent or the Surviving Corporation or a Company Subsidiary, shall pay the Estimated Company Transaction Expenses in the amounts and to the persons Persons specified in the Company Transaction Expense Scheduletherein. (f) Any At the Closing, Parent or the Surviving Corporation or a Company Subsidiary, shall pay the MSA Termination Payment in accordance with the terms of the MSA Termination Agreement. (g) At the Closing, Parent or the Surviving Corporation or a Company Subsidiary, shall pay all Indebtedness set forth under Section 2.1(a)(6)(i), (iii) and (iv) to the lenders of such Indebtedness. (h) Subject to Section 2.4, any amount (other than any portion of the Initial Common Equity Consideration) which any of the holders of Company Common Stock or RSUs become entitled hereunder after the Closing under Section 2.7 (including any amounts payable for their account under the PPA Escrow Agreement) (collectively, as agreed to by the Stockholder Representative or as otherwise determined hereunder, the “Additional Common Equity Consideration”), which amounts shall be paid to the Paying Agent for distribution to the holders of Company Securities Common Stock and RSUs, and thereafter distributed to them as provided in Section 2.3, Section 2.5, Section 2.7 and, to the extent applicable, in accordance with the Paying Agent Agreement. (i) Subject to Section 2.4, any amounts (other than any portion of the Initial Preferred Stock Amount) which any of the holders of Rollover Shares and Rollover Options) Company Preferred Stock become entitled hereunder after the Closing (including any amounts payable for their account under the Indemnity Escrow AmountAgreement)(collectively, any Reserve Amountas agreed to by the Stockholder Representative or as otherwise determined hereunder, or any other the “Additional Preferred Stock Consideration”), which amounts due and payable shall be paid directly to the holders of Company Securities in connection with the Transactions) (collectively, the “Additional Company Securities Amount”) shall be paid to the Stockholder Representative on behalf of the holders of Company Securities, and thereafter distributed by the Stockholder Representative to the holders of Company Securities in accordance with the terms of this Agreement, the other Transaction Agreements and any other documentation or agreements executed and delivered by the holders of Company Securities in connection with the Transactions. Notwithstanding the foregoing, no holder of Rollover Shares or Rollover Options shall be entitled to any portion of any Additional Company Securities Amount. Any amounts payable to holders of Rollover Shares or Rollover Options after the Closing (including any Rollover Working Capital Adjustment Amount, any Rollover Indemnity Escrow Amount, any Rollover Reserve Amount, or any other amounts due and payable to the holders of Rollover Shares and Rollover Options in connection with the Transactions) (collectively, the “Additional Rollover Securities Amount”) shall be paid by the Surviving Corporation to the holders of Rollover Shares and Rollover Options in accordance with the terms of this Agreement, the other Transaction Agreements and any other documentation or agreements that may be executed and delivered by the holders of Rollover Shares and Rollover Options and Newco or the Surviving Corporation in connection with the TransactionsPreferred Stock as provided herein.

Initial Merger Consideration. Subject to Section 1.11 (Dissenting Shares) and Section 8.6 (Right of Set-Off), Parent shall pay for all of the Company Common Stock, Company Preferred Stock, Company Stock Options and Company Warrants issued and outstanding immediately prior to the Effective Time the consideration set forth in this Section 1.8 as follows: (a) The initial aggregate consideration Parent shall advance Three Hundred Thousand Dollars ($300,000) as a third loan to fund the “Initial Company Securities Amount”) to be paid in connection with the Merger to the holders of the class A common stock, par value $0.0001 per share, ongoing operation of the Company (the “Class A Common StockThird Loan” and, together with the First Loan and the Second Loan, the “Loans”) upon execution of this Agreement, unless Parent has previously advanced the Third Loan to the Company. (b) At Closing, Parent shall pay Ten Million Dollars ($10,000,000) (the “Initial Payment”), plus or minus, as the holders of case may be, the class B common stockPurchase Price Adjustment, par value if any (as defined in section 1.8(c)) (as so adjusted, the “Initial Merger Consideration”), which shall be paid by Parent to the Persons and in the amounts as follows: (x) One Million Dollars ($0.0001 per share, of the Company 1,000,000) (the “Class B Common StockEscrow Funds”) to the Escrow Agent to be held in escrow to secure any indemnification obligation of the Stockholders under Section 8.2; (y) Two Hundred Eighty Thousand Five Hundred Dollars ($280,500), in the aggregate, to the persons and together in the amounts as set forth in Section 2.5 of the Disclosure Schedule, in partial repayment of the Bridge Loans; and (z) the balance of the Initial Merger Consideration, less any withholding described in 4.11(g), in accordance with the Class A Common Stock, terms of the Payment Agreement (such balance payable to the Stockholders at Closing is sometimes referred to herein as the “Company Common StockNet Initial Merger Consideration”). The Escrow Funds shall not be distributed to the Stockholders until twelve (12) months after the Effective Time and shall only be distributed in accordance with the terms and conditions of the Escrow Agreement. In the event that Parent shall have perfected, other than shares prior to the expiration of Company Common Stock to be cancelled such twelve- (12-) month period, a claim for indemnification pursuant to Section 2.3(a)8.4, the Optionholders (as defined herein) Stockholders’ Representative and the Warrantholders (as defined herein), Parent shall be an endeavor in good faith to determine a reasonable estimate of the maximum amount equal of such claim and shall instruct the Escrow Agent to deliver any excess amount of Escrow Funds to the following Payment Agent for distribution to the Stockholders in accordance with the Escrow Agreement. (which amount c) The Initial Payment shall be adjusted as provided herein): (1) $840,000,000 (the “Total ConsiderationPurchase Price Adjustment”); plus ) as follows: (2A) decreased by (i) the amount of cash and Cash Equivalents the Loans; (ii) the amount of the Company and the subsidiaries of the Company consideration that would have been payable to Dissenting Stockholders (collectively, the “Company Subsidiaries”as defined below) on the Closing Dateif they had not perfected their rights as Dissenting Stockholders; plus (3iii) the amount, if any, by which Transaction Expenses exceed $150,000; (iv) any amounts paid prior to Closing in settlement of the Estimated Closing Working Capital is greater than $52,000,000 Musket Litigation; (the “Net Working Capital Target”); minus (4v) the amountSupplemental Advance, if any; and (vi) the aggregate amount of the employee bonuses payable at Closing, as set forth in Section 2.8(j) of the Disclosure Schedule; and (B) increased by (i) the Closing Capital and (ii) that portion of the Supplemental Advance, if any, by which the Estimated Closing Working Capital is less than the Net Working Capital Target; minus (5) the amount of Company Transaction Expenses; minus (6) all outstanding Indebtedness of that the Company spends on operations in the ordinary course of business, consistent in nature and amount with past practice, after having spent all other cash resources available to the Company Subsidiaries on the Closing Date (before taking into account any repayment of Indebtedness on the Closing Date pursuant to the terms hereof), including the following (the “Closing Indebtedness”): (i) all outstanding principal and accrued and unpaid interest (but not the outstanding letters of credit issued thereunder (the “Letters of Credit”)) under the credit agreement, dated as of November 5, 2004, by and among D▇▇▇▇ Pet Care Company, as borrower, the Company, as guarantor, the lenders from time to time party thereto and Credit Suisse First Boston, acting through its Cayman Islands Branch, as administrative agent and collateral agent (the “Existing Credit Agreement”) and any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (ii) all outstanding principal and accrued and unpaid interest under the 9.750% senior subordinated notes due 2007 (the “2007 Notes”) of DPC and any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (iii) all outstanding principal and accrued and unpaid interest under the 10.750% senior notes due 2010 of DPC (the “2010 Notes” and, together with the 2007 Notes, the “Notes”); plus (iv) all outstanding principal and accrued and unpaid interest under the 7.250% Ottawa County Finance Authority Industrial Revenue Bonds of DPC (the “Miami Bonds”) and, if the Company fails to obtain the Consent in respect of the Miami Bonds contemplated by Section 5.16 prior to the Closing Date, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (v) all outstanding principal and accrued and unpaid interest under the 6.25% Oklahoma Development Finance Authority Industrial Development Revenue Bonds of DPC (the “C▇▇▇▇▇▇ ▇▇▇▇▇” and, together with the Miami Bonds, the “Bonds”) and, if the Company fails to obtain the Consent in respect of the C▇▇▇▇▇▇ ▇▇▇▇▇ contemplated by Section 5.16 prior to the Closing Date, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); plus (vi) the liquidation preference and all accrued and unpaid interest or dividends with respect to the 14.25% senior preferred stock (the “DPC Preferred Stock”) of DPC and any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions), to be calculated pursuant to Section 5(c) of the Certificate of Designations and other terms thereof (the “DPC Preferred Stock Redemption Amount”); plus (vii) all outstanding principal and accrued and unpaid interest under the loan agreement dated June 14, 2004 between A/S Arovit Petfood and FIH Erhvervsbank A/S (the “FIH Loan Agreement”) and, if the Company fails to obtain the Consent in respect of the FIH Loan Agreement contemplated by Section 5.16 prior to the Closing Date, any fees, pre-payment premiums, pre-payment penalties and charges associated therewith (including, for the avoidance of doubt, any additional amounts payable as a result of the Transactions); minus (7) the Escrow Amount; minus (8) the Reserve Amount; minus (9) the Rollover Amount; minus (10) $250,000. (b) At the Closing, Newco shall, or shall cause the Surviving Corporation to, pay by wire transfer of immediately available funds the following: (1) to the Paying Agent, an amount for distribution in accordance with Sections 2.3(b), (c) and (d) and Section 2.5 equal to the Initial Company Securities Amount; (2) to the Paying Agent, an amount for distribution in accordance with Section 5.14 equal to the DPC Preferred Stock Redemption Amount (together with the Initial Company Securities Amount, the “Initial Merger Consideration”); (3) to Sun Trust Bank (the “Escrow Agent”), an amount equal to the sum of (i) an amount equal to $5,000,000 minus the Rollover Working Capital Adjustment Amount (the “Working Capital Adjustment Escrow Amount”) and (ii) an amount equal to $15,000,000 minus the Rollover Indemnity Escrow Amount (the “Indemnity Escrow Amount” and, together with the Working Capital Adjustment Escrow Amount, the “Escrow Amount”), in each case to be held for the period provided in, and to be distributed by the Escrow Agent as provided in, Section 8.3 and the terms of an escrow agreement, in form and substance reasonably satisfactory to Newco and the Stockholder Representative, to be entered into at Closing by the Surviving Corporation, the Escrow Agent and the Stockholder Representative (the “Escrow Agreement”); (4) to a reserve account established and maintained by the Stockholder Representative in connection with the Transactions (the “Reserve Account”), an amount equal to $2,000,000 minus the Rollover Reserve Amount (the “Reserve Amount”), which shall be held by the Stockholder Representative and used and distributed as specified in Section 2.8(b) and any other documentation or agreements executed and delivered by the holders of Company Securities in connection with the Transactions; and (5) to an account established and maintained by the Surviving Corporation on behalf of the holders of Rollover Shares and Rollover Options in connection with the Transactions (the “Rollover Account”), the Rollover Working Capital Adjustment Amount, the Rollover Indemnity Escrow Amount and the Rollover Reserve Amount, which shall be held by the Surviving Corporation and used and distributed as specified in Section 2.1(f), Section 2.7(c), Section 2.8(b) and any other documentation or agreements that may be executed and delivered by the holders of Rollover Shares, Rollover Options and Newco or the Surviving Corporation. (c) The Initial Company Securities Amount shall be distributed to holders of Company Common Stock, Company Options and Company Warrants (collectively, the “Company Securities”) by the Paying Agent as provided in Section 2.3 and Section 2.5 and in accordance with the Paying Agent Agreement; provided, that the Paying Agent shall not deliver to such holder of Company Securities any cash for such holder’s outstanding Company Securities until such holder has delivered to the Paying Agent the appropriate Surrender Forms with respect to such Company Securities; and provided, further, that if a holder has not delivered to the Paying Agent the appropriate Surrender Forms at Closing, the Paying Agent shall hold such amount and not pay such amount to such holder until such Surrender Forms are delivered. (d) The DPC Preferred Stock Redemption Amount shall be distributed to holders of the DPC Preferred Stock by the Paying Agent as provided in Section 5.14 and in accordance with the Paying Agent Agreement and the certificate of designations for the DPC Preferred Stock (the “Certificate of Designations”); provided, however, that the Paying Agent shall not deliver to such holder of DPC Preferred Stock any cash for such holder’s outstanding shares of DPC Preferred Stock until such holder has delivered to the Paying Agent the appropriate return notice (as provided in the Certificate of Designations) with respect to such shares of DPC Preferred Stock. (e) At the Closing, the Surviving Corporation shall pay the Company Transaction Expenses in the amounts and to the persons specified in the Company Transaction Expense Schedule. (f) Any amounts payable to the holders of Company Securities (other than holders of Rollover Shares and Rollover Options) after the Closing (including any Escrow Amount, any Reserve Amount, or any other amounts due and payable to the holders of Company Securities in connection with the Transactions) (collectively, the “Additional Company Securities Amount”) shall be paid to the Stockholder Representative on behalf of the holders of Company Securities, and thereafter distributed by the Stockholder Representative to the holders of Company Securities in accordance with the terms of this Agreement, the other Transaction Agreements and any other documentation or agreements executed and delivered by the holders of Company Securities in connection with the Transactions. Notwithstanding the foregoing, no holder of Rollover Shares or Rollover Options shall be entitled to any portion of any Additional Company Securities Amount. Any amounts payable to holders of Rollover Shares or Rollover Options after the Closing (including any Rollover Working Capital Adjustment Amount, any Rollover Indemnity Escrow Amount, any Rollover Reserve Amount, or any other amounts due and payable to the holders of Rollover Shares and Rollover Options in connection with the Transactions) (collectively, the “Additional Rollover Securities Amount”) shall be paid by the Surviving Corporation to the holders of Rollover Shares and Rollover Options in accordance with the terms of this Agreement, the other Transaction Agreements and any other documentation or agreements that may be executed and delivered by the holders of Rollover Shares and Rollover Options and Newco or the Surviving Corporation in connection with the Transactions.